CATCHWORDS: WORKERS COMPENSATION - whether commencement of proceedings to recover damages in respect of a work-related injury on 21 November 2001 in contravention of s151C of the Workers Compensation Act 1987, constituted an election for the purposes of s151A, precluding the worker from claiming permanent lump sum compensation under that Act STATUTORY INTERPRETATION - transitional provisions - whether by virtue of cl 9(1) of the transitional provisions in Schedule 6, Part 18C of the 1987 Act, the new s151A of the 1987 Act inserted by Schedule 1 of the Workers Compensation Legislation Further Amendment Act 2001 applied. (D)
JEFFREY HUMPHREYS V MULCO TOOL & ENGINEERING PTY LTD
HEADNOTE
The appellant was injured at work on 4 June 2001. He commenced proceedings to recover damages from the respondent in respect of his injuries in the District Court of New South Wales on 21 November 2001. The proceedings were commenced less than six months after notice of his injury was given to the respondent in contravention of s 151C(1) of the Workers Compensation Act 1987 (the “1987 Act”). An Arbitrator dismissed the District Court proceedings in April 2003 on the basis that the appellant was not entitled to commence them by virtue of s 151C(1).
On 31 March 2004 the appellant lodged a claim with the respondent’s workers’ compensation insurer for medical expenses and for “permanent impairment/pain and suffering” pursuant to ss 66 and 67 of the 1987 Act. The insurer denied liability on the basis that by commencing the District Court proceedings the appellant had made an irrevocable election under s 151A of the 1987 Act, as in force at 21 November 2001.
A Deputy President in the Workers Compensation Commission upheld the insurer’s plea and held that the appellant was precluded from commencing proceedings for permanent loss compensation under ss 66 and 67 of the 1987Act by reason of his election to commence proceedings to recover damages in the District Court of New South Wales in 21 November 2001.
The appellant…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Humphreys v Mulco Tool & Engineering Pty Ltd
The dispute in *Humphreys v Mulco Tool & Engineering Pty Ltd* concerned whether the commencement of proceedings to recover damages for a work-related injury constituted an election under section 151A of the *Workers Compensation Act 1987* (NSW), thereby precluding the worker from claiming permanent lump sum compensation under that Act. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the court were: firstly, whether the worker's action in commencing proceedings for damages on 21 November 2001 amounted to an election for the purposes of section 151A of the *Workers Compensation Act 1987*; and secondly, whether, by virtue of clause 9(1) of the transitional provisions in Schedule 6, Part 18C of the 1987 Act, the newly inserted section 151A of the 1987 Act, as amended by the *Workers Compensation Legislation Further Amendment Act 2001*, applied to the worker's claim.
The Court of Appeal allowed the appeal, finding that the commencement of proceedings for damages did not constitute an election that precluded the worker from claiming permanent lump sum compensation. The court held that the relevant provisions, including the transitional arrangements, did not operate to prevent the worker from pursuing their claim for lump sum compensation. The court ordered that the appeal be allowed with costs.